The U.S. Supreme Court decided a case in March 2005 that provides a stark reminder of how far we still have to go in both establishing basic legal principles interpreting our antidiscrimination laws and eliminating the discrimination they prohibit. In Jackson v. Birmingham Board of Education, 125 S. Ct. 1497 (2005), a high school coach who was fired for complaining about the unequal treatment of his girls’ basketball team sued his school for retaliation under Title IX of the Education Amendments of 1972, the federal law prohibiting sex discrimination in, under, or by federally funded education programs. Coach Jackson protested the inferior treatment his female athletes received, including not being allowed to practice in the new gym used by the boys’ team, not having access to the ice machine (which Jackson once had to break into with a screwdriver to get ice for an injured player), and not being provided with necessary uniforms and funding to support the team. The lower courts and the Eleventh Circuit Court of Appeals dismissed his complaint on the ground that Title IX does not provide a private right of action for retaliation, despite the fact that all other circuits to address the issue have held otherwise. The Supreme Court reversed.
Jackson ’s Principles and Title IX
In a 5–4 opinion, the Supreme Court held that retaliation against people who complain of sex discrimination is itself a form of intentional sex discrimination prohibited by Title IX and that a private cause of action is therefore available to redress the injury suffered. Writing for the majority, Justice Sandra Day O’Con-nor held that the Eleventh Circuit ignored the Court’s prior holdings construing discrimination under Title IX broadly, and that retaliation is an as-pect of discrimination that does not need to be explicitly mentioned in a general antidiscrimination statute. Moreover, because Title IX prohibits sex discrimination under any education program, to be covered, the victim of the retaliation does not also have to be the victim of the discrimination that is the subject of the original complaint. The Court recognized that “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” Id. at 1508. The impact of this decision, like others interpreting Title IX, extends to analogous statutes prohibiting discrimination in federally funded programs, such as Title VI of the Civil Rights Act of 1964 (race, color, and national origin), Section 504 of the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975, as well as to constitutional principles addressing discrimination and the liability of educational and other institutions.
Important Issues Remain Unresolved
Jackson resolved one of the many Title IX legal issues that had yet to be decided despite the decades the law has existed. For instance, the Court has now made clear that a damages remedy for intentional discrimination is available under a Title IX private right of action, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), but the nature of the proof necessary to secure damages remains unresolved. In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), for example, the Court held that to recover damages for sexual harassment, the plaintiff must show that the school responded to the harassment with “deliberate indifference.” But lower courts are still grappling with what actually constitutes deliberate indifference, and the Supreme Court has yet to resolve the issue.
Similarly, the Supreme Court has held in Alexander v. Sandoval, 532 U.S. 275 (2001), that a private right of action is available under Title VI for intentional discrimination only, not for discrimination resulting from practices having a disparate impact on the basis of race or national origin. Most lower courts have assumed that such a limitation applies to Title IX as well, but its scope and application are unclear. This issue is especially important in addressing some of the discriminatory barriers young women face in securing nontraditional educational options.
Nor has the Court ruled on the Title IX standards prohibiting sex discrimination in athletics. All ten circuits to consider Title IX’s athletics policies, in place since 1979, have upheld and applied them. However, in March 2005, the Bush administration adopted a “Clarification” of the policies, weakening a key aspect of the requirements relating to the provision of equal participation opportunities. The legality of this change will no doubt wind its way through the courts, and the nature of schools’ responsibilities to accommodate the interests and abilities of their female students will quite likely be an issue ultimately addressed by the Court.
Title IX cases have often been decided by narrow margins. The same is true for cases brought under other key antidiscrimination laws and the Fourteenth Amendment, such as Grutter v. Bollinger and Gratz v. Bollinger, which recognized the government’s compelling interest in promoting diversity in our nation’s schools but struck a delicate balance as to how exactly schools may achieve that diversity. Given the new Chief Justice and the pending O’Connor vacancy, there is heightened uncertainty about the resolution of these key questions in the years to come.
Sex Discrimination Remains
Discrimination against women and girls in education unfortunately persists in career and technical education, math and science programs, and athletics, to name a few. Adding in-sult to injury, women of color often face double discrimination—on the basis of both sex and race or national origin—as do disabled women and older women.
Career and Technical Education. More than three decades after Title IX was enacted, young women re-main severely underrepresented in nontraditional courses—such as engineering technology and electronics—in high school career and technical education. Gender discrimination—including stereotyping, steering, and sexual harassment—contributes to this persistent pattern. A National Women’s Law Center investigation of enrollment patterns in twelve geographically diverse states across the country reveals that girls represent more than five out of six students in courses leading to traditionally fe-male occupations and fewer than one out of six students in courses leading to nontraditional occupations. These traditionally female fields pay substantially lower wages than nontraditional fields and therefore have serious implications for girls’ future economic security. For example, in cosmetology, where girls represent 98 percent of the students, the median wage is $9.52 per hour. By comparison, girls make up only 6 percent of those studying to be electricians, who earn a median wage of $20.33 per hour.
Successful practices used by various states to increase female enrollment in nontraditional subjects dispel the notion that girls are just not interested in these subjects. States’ experiences show that young women’s enrollment in nontraditional courses rises when they are educated about and encouraged to participate in these classes. For example, after one public school district in North Dakota sponsored career days and a camp to introduce young women in junior high and high school to nontraditional courses, enrollment in these courses increased by 32 percent in just three years.
Math and Science. At a time when the United States is falling further behind in science, technology, engineering, and mathematics, ad-dressing the barriers that hinder women’s participation in these fields could not be more important. Yet, according to the National Science Foundation, the number of women who received undergraduate degrees in computer and information sciences actually fell to 28 percent in 1999 from a high of 37 percent in 1984. A recent General Accounting Office report shows that in 2000 women constituted only 20 percent of the students receiving bachelor’s degrees in engineering.
As a landmark study conducted at the Massachusetts Institute of Tech-nology makes clear, women and girls face multiple barriers to pursuing careers in these fields. They continue to confront stereotypes about their interests, abilities, and commitment to work. They lack mentors and role models, are discouraged by their professors and department chairs, and face sexual harassment and hostility. The small number of female faculty receive lower salaries than male peers, have unequal access to re-sources, and are excluded from leadership positions.
Athletics. At all levels of education, young women continue to face discrimination on the playing field. Although at least half of their students are female, high schools and colleges provide women and girls with only 42 percent of the opportunities to play sports. Inequities in athletic scholarships and funding are even more pronounced, with women receiving only about one-third of the overall athletic operating budgets and dollars spent to recruit athletes. Each year female athletes receive about $120 million less than male athletes in athletic scholarships, which affects their economic security and possibly their ability to attend school at all. Gender equity in allocating sports opportunities is important not only as a matter of fairness but also because studies show that young women who play sports are healthier, have greater academic success, and have lower rates of drug use, smoking, sexual activity, and teenage pregnancy.
The Road Ahead
Title IX is a powerful tool that can remedy the discrimination women and girls continue to face in education, but its effectiveness is dependent on courts’ willingness to interpret its provisions in a way that gives force to Congress’s intent that it apply broadly. With so many key issues to be re-solved, the role of the courts will be critical in the years to come.
Similarly, administrative enforcement of Title IX is essential. Title IX is designed to be enforced by the agencies providing the federal funds that trigger coverage. People may file complaints with the relevant federal agencies, or the agencies may initiate compliance reviews. If a recipient of assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency can either initiate fund termination proceedings—which has never happened in the history of Title IX—or refer the matter to the Department of Justice for appropriate legal action. Concerns have arisen, however, re-garding reduced resources given to these key enforcement agencies and a lack of will to enforce Title IX. Un-fortunately, for example, the Depart-ment of Education has refused to investigate the underrepresentation of young women in math and science education programs, despite recent requests to do so by Senator Ron Wyden (D-OR) and more than 200 scientists, mathematicians, and engineers concerned about the “persistent underrepresentation” of women in these fields. The department declined to investigate because no individual person has complained, even though established legal principles indicate that statistical disparities of the magnitude identified are a red flag for unlawful discrimination and would warrant general compliance reviews. Fortunately, after hearings held by Wyden, other federal agencies, such as the Department of Energy, the National Aeronautics and Space Administration, and the National Science Foundation, have stated that they will enforce Title IX in their education programs by reviewing compliance in this area. But their promises have yet to bear fruit.
Great concern also exists regarding the Department of Education’s March 2005 athletics clarification, which weakens the standards as to the participation opportunities schools must provide to female students. Women’s organizations and others, including the National Col-legiate Athletic Association, have objected strongly to the change. The degree to which schools will take advantage of this new policy, with its legality under question, is unclear. But what is clear is that the department will not be applying the strong policy in its own investigations that had been in effect since 1979.
Further, with respect to schools’ obligations to prevent and address sexual harassment of students, the Department of Education, without explanation, has “archived” key guidance that was revised and issued after Gebser, which had articulated a new standard for damages for private litigants. The guidance reaffirmed that the compliance standards the department applies in investigations and administrative enforcement of Title IX did not change in light of Gebser because the standards established in that decision are limited to private actions for monetary damages. With this important guidance on the legal landscape removed, schools are left trying to figure out on their own the impact of the Supreme Court holding on sexual harassment standards.
The country has come a long way since Title IX was enacted, but we have miles to go to make the promise of the law a reality. Especially with cutbacks in administrative enforcement, future interpretations and applications of this landmark civil rights law in the courts are extremely important. Now is no time to turn back the clock.
Marcia D. Greenberger is copresident of the National Women’s Law Center in Washington, D.C. She and other lawyers from the Center, with lawyers from O’Melveny & Myers, LLP, were cocounsel in the Jackson case before the Supreme Court. Neena K. Chaudhry is senior counsel at the Center in Washington, D.C